Argument recap: Who controls foreign policy?

Posted Mon, November 7th, 2011 3:21 pm by Lyle Denniston

Analysis

Probing deeply into how the Constitution divides up powers, and delving into presidential history back to George Washington’s day, the Supreme Court reacted negatively on Monday to the federal government’s sweeping view that only the President can decide an issue that may affect U.S. dealings with foreign governments. Still, the Court appeared to be leaning toward giving the White House a more modest victory over Congress in a fascinating case that clearly lived up to its billing as a historic constitutional test.

The Court has not heard an argument about “inherent” powers of the presidency since the Bush Administration’s claims about its “war on terror,” but it heard something very close to that from the Obama Administration’s top government advocate, who insisted that the President should win this foreign policy controversy even if there is nothing in the Constitution’s text that would justify it. That produced only heavy skepticism on the bench, making it seem that U.S. Solicitor General Donald B. Verrilli, Jr., had overplayed his hand on his biggest point.

On the surface, all that might seem to be at stake in Zivotofsky v. Clinton (10-699) was whether some 50,000 Americans who were born in Jerusalem can have their birth certificates and passports show that they were born in Israel, as Congress in 2002 said they should. And a Washington lawyer for the Zivotofsky family, Nathan Lewin, tried very hard to make the case that, in fact, it came down to a single line on a passport to help identify Jerusalem-born Americans as they travel overseas.

But Lewin, too, had a larger purpose in mind, as he sought to rescue that nine-year-old law in which Congress sought to dictate how that line should read, if that citizen wanted it to say “Israel.” That part of the attorney’s effort, however, seemed in jeopardy. He, too, seemed to overplay his hand, contending that Congress and the Presidency have virtually equal power over foreign policy matters. And Justice Antonin Scalia told Lewin that he was not arguing for equality of power, but superiority in this field for Congress.

The most important single question during the hour-long argument could well have been the one that Justice Elana Kagan asked, within seconds after Lewin had begun his argument: “Well, Mr. Lewin, what power is Congress exercising here?” He said it was the power, going back to 1856, to control the contents of passports as part of its authority over immigration matters. But Justice Samuel A. Alito, Jr., quickly retorted that Congress had put a title on the bill at issue, saying that the measure was a declaration of U.S. policy that Jerusalem is Israel’s capital — one of the most provocative things that the U.S. can say to Israel’s Arab neighbors, especially the Palestinians who live in eastern Jerusalem.

It is State Department policy, and long has been, that the U.S. won’t recognize any sovereign country’s claim to Jerusalem, because of the sensitivity of that issue to Mideast geopolitics. If Congress was trying to dictate policy on the point, it seemed clear during Monday’s argument, it probably went beyond its constitutional powers, whatever they may be, in the foreign policy field. So, it would seem, the government might win simply by having the Court declare that Congress cannot command policy on that specific point.

Tellingly, Justice Anthony M. Kennedy said that “the whole question” in the case is whether the 2002 law was within Congress’s authority. And Justice Sonia Sotomayor asked, rhetorically, “what entitles Congress to trench on a presidential power that has been exercised virtually since the beginning of the country?” She bluntly contended that Congress was trying to “hobble” the presidency with this law.

But before the Court could reach the question of the 2002 statute’s validity, it would first have to decide that resolving the dispute is, indeed, within the jurisdiction of the courts. The D.C. Circuit Court had ruled that the courts had to stay out of the fight, because it involved a “political question” for Congress and the White House to resolve. And that is the point on which Verrilli’s argument appeared to encounter significant trouble.

The Executive Branch takes the position that the dispute over passport entries is, indeed, a “political question.” It is, Verrilli stressed before the Court Monday, because the Constitution assigns exclusively to the presidency the task of deciding whether or not to recognize the legitimacy of a foreign government. Once the Court conceded that assignment, of course, the courts would lack jurisdiction to proceed further, according to prior precedents.

Several members of the Court, however, leaped on that argument, saying that it was a way for the government to shut down the whole constitutional inquiry over how the presidency and Congress divide powers in the field of foreign policy.

Chief Justice John G. Roberts, Jr., got this discussion going, after Verrilli had spent a good deal of time recounting presidential history, to show that the power to recognize foreign governments was something that was clearly established by George Washington, when he recognized the revolutionary government in France. Roberts suggested that the government lawyer address the “political question” issue, and wondered why the government would not want the Court to move to the question of the constitutionality of the 2002 law, and whether it did intrude on presidential power.

When Verrilli began by saying it did not make much difference which way the Court proceeded, Justice Ruth Bader Ginsburg shot back that, if the Court started with the proposition that the Constitution committed the power at issue solely to the President, that was the end of the case. Justice Alito chimed in, saying that it depended on what was acknowledged to be at issue. If the question is whether the President has sole power to formally recognize a foreign country, that was different from the question of whether the President had “unreviewable authority with respect to anything that the President thinks has a bearing on the question of recognition.”

Verrilli said the government was not going that far. However, he went on to argue that, if the Court did decide on the distribution of the power at stake, it should give “a very significant measure of deference” to the President’s view. He told Justice Kagan that, even if Congress had said explicitly that putting Israel on a passport did not constitute recognition of Israel’s sovereignty over Jerusalem, that would still intrude on the exclusive powers of the White House.

Justice Kennedy promptly advised Verrilli, with a bit of apology, that his argument would be stronger if he accepted the jurisdiction of the Court to decide the constitutionality of the 2002 law, with the argument then that the President should win. The Solicitor General said that if there is jurisdiction, the President does win. No matter how the Justices framed their hypotheticals to test the government’s claim of exclusive Executive authority, Verrilli answered with reaffirmations of a sweeping presidential prerogative.

For example, Justice Scalia wondered if Congress would have power to order the President not to recognize a “breakaway province of a foreign country” if it were clear that doing so would “provoke a war with that country.” Verrilli first answered that the President would act very carefully, but Scalia posited that the President was foolish, and would act contrary to “our entire history.” Verrilli then said that, if the President in that situation went ahead with recognition, it was his prerogative to do so. This prompted Scalia to suggest that, while the President might be the nation’s “sole instrument” of foreign policy, Congress still could say what “the country’s instrument is supposed to do.”

It was in a later exchange with Justice Kagan that the Solicitor General would first identify the source of the exclusive power he was claiming — the Constitution’s assignment to the President of the power to receive ambassadors — but then to argue that, even if that phrase were not in the Constitution, the power of recognition would still be the President’s alone, because history supports it and the “functional considerations about the need for it” also help justify it.

When Justice Stephen G. Breyer tried to help resuscitate the “political question” doctrine as a bar to a court ruling on this case, Justice Ginsburg said that would not mean the courts had left it to the political branches to work out. She commented: “If you decide that the President has…the exclusive authority, that’s the end of it…It is not leaving it to the political branches to fight it out between them. It is saying the President has the exclusive authority,” and is a decision on the merits.

Justice Sotomayor then added: “If we call this a political question and don’t address the merits, the outcome is that the President is saying that he’s entitled to ignore the Congress….It’s a little unsettling….That’s what your definition of political question is becoming, and where does that stop?”

When the Chief Justice asked about Verrilli’s comment to Justice Kagan that there need not be a basis in the text for the authority claimed, Verrilli said his answer meant that the power would be supported by “the historical gloss” on the phrase in the Constitution that “vests” Executive power in the president. Roberts retorted: “That sounds to me like not in the text.”

Lewin, in his rebuttal, again made an effort to convince the Court that the case was not one about the power to recognize a foreign country, but only about who gets to say what is on a U.S. passport. “It’s a passport law; it’s within Congress’s constitutional authority.”

Upcoming Oral Arguments

3/31Kimble v. Marvel Enterprises, Inc. Whether the Court should overrule Brulotte v. Thys Co., which held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se”.

On Monday afternoon Justices Anthony Kennedy and Stephen Breyer testified before the House Appropriations Committee. The purpose of the hearing was to discuss the Court’s budget for the next fiscal year and the federal judiciary, but the legislators also took full advantage of the occasion to touch on other topics as well.